WorkSafe BC Takes a More Interventionist Role
One of the most notable shifts is WorkSafe BC’s increasingly proactive stance. The agency has hired a significant number of new investigators and is prioritizing workplace safety issues, particularly bullying and harassment.
“You’ve really got to make sure you have policies in place and that you take them seriously. WorkSafe is treating bullying and harassment as a workplace safety issue.”
This development has also altered the legal avenues available to employees. Previously, workers experiencing bullying or harassment could pursue constructive dismissal claims. Now, those claims fall under the WorkSafe regime, requiring employees to make a workers’ compensation claim instead. While this increases employer obligations to maintain safe workplaces, it reduces the risk of costly dismissal lawsuits.
Sick Notes and Short-Term Absences
A recent legislative change prohibits employers from requiring sick notes for short-term absences. While “short-term” is defined in the statute, McFarlane explained that it generally applies to a few consecutive days of absence. Repeated or patterned absences, however, may still justify a request for documentation.
Return-to-Office Disputes and Human Rights Claims
As more employers encourage hybrid or in-office work, new legal challenges are emerging. Some employees have relocated during the pandemic and now claim accommodation needs when faced with commuting requirements.
“I’ve got two cases right now at the Human Rights Tribunal. Employees are arguing for accommodation to continue working from home. In some cases, those claims may be exaggerated, but they still create legal disputes.”
This remains an evolving issue, and employers should be prepared for potential challenges when implementing return-to-office mandates.
Federal Replacement Worker Ban
While BC has long had replacement worker restrictions, the federal government has recently introduced its own version. This legislation applies only to federally regulated industries such as airlines, banks, railways, and air traffic control.
A key feature is the requirement that within 15 days of serving notice to bargain, unions and employers must agree on essential service levels. McFarlane sees this as a positive step:
“It prevents last-minute scrambling over what’s essential and ensures services like healthcare or air traffic control can be maintained at agreed levels before a strike begins.”
Strikes, Essential Services, and Real-World Examples
The concept of “essential service” can be broader than many employers expect. McFarlane recalled a case where a remote construction camp was deemed essential because workers were needed to complete environmental work preventing erosion into salmon-bearing streams.
“Without that designation, an entire ecosystem could have been damaged.”
The takeaway for employers is that essential service designations can arise in unexpected industries.
The Right to Disconnect: Flexibility vs. Boundaries
The concept of a “right to disconnect,” similar to laws in France prohibiting after-hours emails, is beginning to influence Canadian workplace discussions. However, McFarlane noted that flexibility complicates the issue.
“Many employees choose to work outside traditional hours for personal reasons. It’s not always about employers imposing on them.”
As hybrid and remote models evolve, employers may face increasing pressure to balance flexibility with clearer expectations around availability.
The Value of In-Person Learning
While flexible work arrangements remain valuable, McFarlane stressed that junior employees benefit greatly from being in the office. Informal mentorship, client interactions, and professional development opportunities are difficult to replicate remotely. His firm, for example, requires junior lawyers to spend more time in the office than senior staff in order to gain critical hands-on experience.
Political Change and Labour Relations Outlook
The recent change in Canada’s federal government may accelerate infrastructure development, particularly in BC. Large-scale energy and transportation projects are expected to move forward more quickly, creating employment opportunities.
However, McFarlane predicts rising labour unrest. With inflation eroding wages and unions emboldened, many collective agreements will face difficult negotiations.
“I wouldn’t be surprised if we see more strikes. Unions face tough choices when government bargaining mandates cap wage increases.”
Key Takeaways for Employers
- Update policies: Ensure robust anti-bullying and harassment protocols.
- Know the limits: Understand when you can (and cannot) request medical documentation.
- Prepare for disputes: Expect human rights claims linked to return-to-office mandates.
- Stay informed: Federal labour law changes may impact certain industries.
- Support staff: Recognize the benefits of flexibility, but also the importance of in-person mentorship.
- Watch labour trends: Rising union assertiveness could lead to more strikes.
Final Thoughts
Employment law in BC and across Canada continues to evolve rapidly. McFarlane’s insights highlight the importance for employers to remain proactive, flexible, and well-informed as new rules and challenges emerge.
